In re Flower — 28 N.Y. St. Rep. 80

Majority

p. 80

In the Matter of the Application of Roswell P. Flower for an Order Directing the Treasurer of Long Island City to Cancel Certain Water Rates and Taxes.

(Supreme Court, General Term, Second Department,

Filed December 9, 1889.)

Headnote

1. Taxes—Water rates—Long Island Oity.

By tile charter of Long Island City vacant lots are subject to rents for water.

2. Same—Constitutional law.

The provisions of the charter as to the assessment of the water rents are invalid, however, as they give the owner nó right to be heard.

3. Same—Legislature has power to rblevy.

The legislature had power to, and did by the act of 1886, confirm and levy such invalid water rents on the lands on which they had theretofore appeared to be assessed, and the same were thereafter valid liens.

Appeal from order of special term, directing the treasurer and receiver of taxes of Long Island City to cancel water rents, known as lot rents, for the years 1876 to 1884, 1886 and 1887, on vacant lots owned by petitioner. Petitioner claimed that the -charter did not authorize the assessment of water rates on vacant lots, and that the provisions of the charter as to water rents was unconstitutional in that it makes no provision for notice to the owners of property so assessed.

W. J. Foster, for app’lt; J. Ralph Burnett (Fliphalet Nott Anaile, of counsel), for resp’t.

By the charter of Long Island City vacant lots were subject to rents for water.. Title 10, § 4 of chapter 461, Laws of 1871, seems to refer to lots which had buildings on them. The act, § 12, title 10, required the rents to be assessed upon building “ or vacant lot ” chargeable with water rent. By-chapter 415, Laws of 1875, and by chapter 100, Laws of 1879, and by chapter 684, Laws of 1881, the water rents are put upon lots, vacant or otherwise.

By the charter of 1871 a board of water commissioners were ' authorized to assess the water rents, and no notice was provided for to the taxpayers. The list was made out and filed and notice given to -the taxpayers, who were then bound to pay the assessment to the city treasurer. The tax was invalid. Remsen v. Wheeler, 105 N. Y., 573 ; 8 N. Y. State Rep., 202.

The legislature confirmed the water taxes, and levied them on the several pieces of land on which they were theretofore assessed, or appeared of record to have been so assessed or charged. Chap. 383, Laws of 1882, §§ 1, 2; chap. 656, Laws of 1886, § 15.

The legislature had the power to impose a tax in this way. The question was directly presented in Matter of Van Antwerp, 56 N. Y., 261 . The court says: “ It is objected that it is not competent for the legislature to validate a void assessment, and that it could only authorize a reassessment. The answer to this is, that the legislature did not attempt to legalize the old assessment, but itself exercised the power of making new assessments. The old .assessment was referred to, not for the purpose of adoption, but

p. 81

for the purpose of fixing the specific amount by the proportion specified, and the act expressly leaves that amount as a tax."

This doctrine is not touched in the case of Stuart v. Palmer, 74 N. Y., 183 . The power of the legislature to tax is only limited by an apportionment of the burden. It is not denied that the legislature may not only tax but apportion the burden among the property owners.

In Remsen v. Wheeler, 105 N. Y., 573 ; 8 N. Y. State Rep., 202, there was no act of the legislature validating the void tax. In Spencer v. Merchant, 100 N. Y., 585 , the court of appeals say, “ The act of 1881 determines absolutely and conclusively the amount of tax to be raised and the property to be assessed, and upon which it is to be apportioned. Each of these things was within the power of the legislature, whose action cannot be reviewed in the courts upon the ground that it acted unjustly or without appropriate and adequate reason * *

“ The legislature may commit the ascertainment of the sum to be raised and of the benefitted district to commissioners, but it is not bound to do so and may settle both questions for itself; and when it does so its action is necessarily conclusive and beyond review."

These remarks were made in a case where the legislature had reassessed the tax originally imposed under a void law.

The order should, therefore, be reversed, with costs and disbursements.

Dykman and Pratt, JJ., concur.